On December 16, 2022, the Ohio Supreme Court issued a ruling in Brandt v. Pompa that may call into question the applicability of Ohio’s non-economic damages cap in future tort actions. Under tort reform enacted in Ohio in 2005, R.C. 2315.18 (B)(2) expressly limits non-economic damages to $250,000, or an amount equal to three times the economic loss for a maximum of $350,000 per plaintiff, with a $500,000 limit per occurrence. The Court had previously ruled the cap constitutional on its face. In Brandt, the Supreme Court found the non-economic damages caps unconstitutional as applied to a victim of childhood sexual assault who suffered lengthy and severe psychological trauma.

The Court noted that although Ohio provides permanent-injury exception to the compensatory-damages caps for noneconomic loss, the application of the caps to victims such as Brandt and similarly situated plaintiffs does not advance any of the legitimate goals of tort reform in Ohio. The statute was found unconstitutional as applied because it “does not include an exception for severe and permanent psychological injuries in its caps on damages for noneconomic loss.” Therefore, the ruling in Brandt may open the door for circumventing the non-economic damages cap in Ohio in product liability and tort actions by alleging catastrophic and severe psychological impacts related to the injuries. 

As noted in the dissent, the Court had previously ruled the non-economic damages caps constitutional as applied to a different victim of childhood sexual assault in Simpkins v. Grace Brethren Church of Delaware, Ohio. Thus, the ruling in Brandt may require courts in future tort cases to consider the facts of the case in determining whether the plaintiff suffered catastrophic or severe psychological damages, which are not defined anywhere in Ohio law. For tort defendants in future cases, the concern is that it will be impossible to determine whether the court will consider damages to be catastrophic and severe or not. As a result, the applicability of statutory damages caps that defendants previously relied upon may be in question.

It remains to be seen how the Brandt ruling will impact tort litigation in Ohio. Furthermore, other states with similar non-economic damages caps may be urged by plaintiffs to adopt the positions taken by the Brandt court. Given the propensity for exorbitant jury awards in the current climate, it will be critical for tort defendants and their counsel to be mindful of these developments in the future.